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Farla negli Stati Uniti può mettere a rischio il posto di lavoro; in Giappone è una pratica diffusa. Una pennichella di venti minuti in ufficio riposa il cervello e aiuta a essere più creativi e produttivi. Un articolo di 99U. (pc)

Image: Sleep by DonBLC 123 from The Noun Project

Dr Jeremias Prassl

Case C-509/11 ÖBB Personenverkehr AG

As discussed in a recent review, the European Union’s involvement in the field of transport regulation can be characterised as a two-stage process: after years of market-liberalisation which brought about cheaper fares and a drastic increase in routes across the continent, passengers have more recently been equipped with direct rights of redress against operators. Whilst such rights have been provided for a wide variety of transport modes, from rail and maritime transport to travel on inland waterways and coach journeys, the vast majority of passenger rights litigation before the Court of Justice (CJEU) thus far has been in the context of civil aviation. The CJEU’s recent judgment in ÖBB Personenverkehr AG breaks with this mould – and is therefore not only an important decision for rail passengers, but also relevant for EU transport law more broadly.

The Legal Framework of Rail Passenger Rights

The legal framework of rail passenger rights is set out in a combination of international and European law: an international measure, the rather unwieldy Uniform Rules concerning the Contract for International Carriage of Passengers and Luggage by Rail, forming part of the Convention concerning International Carriage by Rail of 9 May 1980 (as amended by the Vilnius Protocol of 3 June 1999) [‘CIV’], lays down a basic framework which is then fleshed out by more recent EU legislation, Regulation (EC) No 1371/2007 on Rail Passengers’ Rights and Obligations.

The latter Regulation contains a series of provisions on rail transport, including compensation of the ticket price in case of delay. Under Article 17, passengers have the right to be partially reimbursed for their ticket cost, depending on the extent of delay: 25% in case of delays between 60 and 199 minutes, and 50% thereafter. Delay compensation more broadly, on the other hand, is to be handled according to Article 32 CIV, as appended to the Regulation. Under the latter provisions, railway carriers enjoy a force majeure exception from their liability to compensate passengers from loss or damage arising from delay – including unavoidable circumstances beyond the operator’s control. The Regulation, however, provides for no such exemption in its Article 17; its article 6 explicitly prohibits any contractual waiver or derogation.

Article 30(1) of the Regulation, finally, stipulates that in order to ensure the coherent enforcement of its provisions,

Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation. Each body shall take the measures necessary to ensure that the rights of passengers are respected.

The Facts of the Present Case

The procedural background to the case is rather unusual: it does not arise out of a specific claim brought by a delayed passenger. Instead, the preliminary reference from the Austrian Administrative Court concerned action taken by a National Enforcement Body, against the national rail service provider, ÖBB. The Rail Control Commission (itself not a stranger to controversy before the CJEU, albeit in its quasi-judicial capacity) had required ÖBB to modify its general conditions of carriage [not currently available in English] insofar as they denied any delay compensation.

Two questions arose as a result: first, the substantive issue (posed as question two in the national reference, but treated as the logically prior issue by both the Advocate General and the First Chamber) as to whether a national carrier could limit, by reference to the International Convention or General Principles of EU law, its obligation under Article 17 of Regulation 1371/2007 partially to refund the ticket price by reference to force majeure. Second, whether in the absence of such a power under national law, Article 30 of the same could be read as empowering the national enforcement body to prescribe the specific content of a carrier’s compensation regime.

AG Opinion

Having set out the full facts and legal framework, the Opinion of Advocate General Jääskinen first addressed the issue of force majeure, noting that nothing in Regulation 1371/2007 suggested that the passengers’ rights under Article 17 could be limited on such grounds. Neither a reading by analogy of other provisions of EU transport law nor the international conventions referred to above had a bearing on this analysis.  Force Majeure could furthermore not be said to operate as a General Principle of EU law, as it was heavily context-specific [32]. Given the overall importance of the Regulation’s consumer protective aims, the interpretation contended for by the Schienen-Kontroll-Kommission was therefore correct.

The opinion then turned to the more complex enforcement issue. Following an extensive discussion of the relevant principles of the effectiveness of EU law, AG Jääskinen suggested that Article 30 could not be stretched to empower the national enforcement body to prescribe specific terms and conditions in the absence of domestic provisions to that effect.

The resulting contradiction – that passengers’ right to reimbursement is clear and unconditional, yet cannot be enforced effectively by the regulator – is addressed in a set of Complementary Observations from paragraph [61] onwards. Even though individual passenger recourse might be rather cumbersome given the small sums usually involved, there was no general obstacle to the enforcement of passengers’ rights as ‘the legal obligation of a railway undertaking to comply with Article 17 [of the Regulation …] does not depend on the powers of the national body or the sanctions available to it’; the detailed procedural resolution of the matter however being a question for the referring court.

CJEU Judgment

Following the Advocate General’s lead, the Court likewise began by answering the second question referred. Focussing on the wording of Article 17 of the Regulation, it noted that compensation there had to be in relation to the ticket price, and that several clear exceptions (such as tickets purchased after a delay has been announced, or delays caused by connections outside Union territory) had been provided. The complementary regime in the CIV was focussed on compensation for individual damage and loss, whereas the Regulation was aimed as compensation related to consideration (ticket price) for service not supplied as contractually agreed. The relevant travaux préparatoires were unequivocal as regards the EU Legislature’s intention that the force majeure exemption in the former was not to be read across into the latter [43].

On the enforcement point, the Court noted that whilst Regulations were generally immediately effective in national legal systems, the principle did not extend to provisions such as Article 30, as the specific measures to be adopted by national enforcement bodies had not been identified by the EU legislature [60]. In the absence of domestic legislation, the Schienen-Control Kommission could therefore not impose specific terms on ÖBB.

Commentary

The Judgment received significant domestic media coverage, with an ÖBB spokesperson noting that notwithstanding the general terms and conditions compensation had already been paid out to passengers since 2011. It should also be pointed out that Regulation 1371/2007 contains important transitional arrangements, allowing Member States to opt out of several provisions (including Article 17) for a period of five years, twice renewable. According to the European Commission, the UK government has decided to institute such a temporary exemption. From an EU transportation law perspective, the case nonetheless raises three interesting issues.

EU Passenger Rights and International Transport Conventions

At first sight, the ÖBB decision looks not too dissimilar from earlier cases in the field of air transport, where air carriers repeatedly challenged the application of EU Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flight for its supposed conflict with the Montreal Convention of 1999 (‘MC’), which lays down uniform rules governing liability arising from the contract of carriage by air. In Case C-344/04 ex parte IATA, the Grand Chamber had held that it would be wrong to assume ‘that the authors of the Convention intended to shield [air] carriers from any other form of intervention’ [45] and found that the Regulation’s ‘standardised and immediate assistance and care measures’ were therefore entirely consistent with the MC [IATA 48].

The legal framework in the present case is of course slightly different – as the Court correctly suggest, the CIV leaves questions of reimbursement to domestic law, with Article 15 of Regulation 1371/2007 explicitly referring to the CIV for damages in respect of delays, missed connections and cancellations. It is nonetheless important to note that the Court is careful to pay attention to rules of international law, emphasising the complementarity between the Regulation’s ‘fixed-rate standard form of financial compensation’ and the CIV system, ‘which requires an individual assessment of the damage suffered’ [38]. Claims under Regulation 1371/2007 could furthermore not prevent additional claims for actual damage suffered pursuant to Article 32(1) CIV.

Towards a Unified Regime of EU Passenger Rights?

Given the increasing Regulation of diverse transportation modes as set out, above, the question as to a potential uniform regime of EU passenger rights is becoming increasingly prominent. The decision in ÖBB however serves as an important reminder of the Court’s firm position that under the current regime, passenger rights rules cannot be read across different modes of transport, as trains, planes, boats and buses are not interchangeable in their usage conditions. This was true in particular as regards an application by analogy of air passenger rights. As the Advocate General noted, the court had already held in Case C-12/11 McDonagh v Ryanair that the EU legislature could establish different levels of protection for passengers, depending on the transport sector concerned. It was therefore not surprising that the CJEU held that the much-litigated extraordinary circumstances defence in Regulation 261/2004 could not be relied upon in support of a force majeure protection for rail operators.

This finding is in line with broader developments in EU passenger rights, which aim for a high standard of passenger protection. This is evident, for example in the current reform proposals to Regulation 261/2004, which include rail transport offered as part of a plane ticket in the (more extensive) protection regime for air travel. This suggests that if unification of transport regulation regimes were to occur in the future, the emphasis on protecting passengers as consumers would undoubtedly lead to a welcome levelling up across the board.

Enforcement Issues

The case, finally, contains an interesting point relevant to EU law more broadly, in particular as regards issues of effective judicial protection. As mentioned, above, Article 30 of Regulation 1371/2007 stipulates for existence of National Enforcement Bodies, without however specifying their roles other than through a broad obligation to ‘take the measures necessary to ensure that the rights of passengers are respected’.

On the present facts, this led to an important question as to how far bodies such as the Schienen-Kontroll-Kommission can go in ensuring the effective enforcement of EU passenger rights. The regulator’s powers were narrowly circumscribed by national law: it could only order rail undertakings to remove offending clauses in rail undertaking’s condition of carriage, rather than stipulate their substantive terms. In consequence, ÖBB had begun simply to re-adopt the offending provisions, with national law thus unable to ensure full passenger protection (without individual passengers’ recourse to litigation). Could the Kontroll-Kommission, in the absence of any national provision to that effect, rely on EU law to impose upon ÖBB the specific content of the relevant terms?

Having recalled the general ‘loyalty clause’ in Art 3(4) TEU, the CJEU went on to carefully balance effective judicial protection and national procedural autonomy. In a paragraph that warrants setting out in full [64], it suggests that

it is for all the authorities of Member States, including, for matters within their jurisdiction, the courts, to take the steps necessary to ensure that the obligations arising under [the Regulation] are fulfilled. In order to ensure the full effect of that regulation and to ensure that the rights which it confers upon individuals are protected, those authorities are required to interpret and apply national law, in so far as possible, in the light of the wording and purpose of that regulation in order to achieve the result envisaged by it.

The ruling thus shows a very mature approach to the interaction of EU law and domestic norms by the CJEU, fully in accordance with the principle of subsidiarity: in the absence of specific terms in a Regulation, it is up to each Member States to ensure the effective enforcement of its provisions; a national regulator cannot rely on EU law to go beyond the scope of domestic legislation. Given this subtle footwork in the Court, it will be most interesting to observe the eventual outcome of this case when the matter returns before the Austrian courts.

European Commission Joaquín Almunia Vice President of the European Commission responsible for Competition Policy Competition in the online world LSE Public Lecture London, 11 November 2013 Ladies and Gentlemen: I would like to thank Professor Calhoun for his kind invitation to return to the London School of Economics.

Piled Higher & Deeper by Jorge Cham		www.phdcomics.com
title: "Coffee Security" - originally published 8/9/2013 For the latest news in PHD Comics, CLICK HERE!

Può ritenersi che il provvedimento di revoca dell’espulsione di Alma Shalabayeva sia idoneo a  “sanare” i profili di illegittimità di tale espulsione?  Dal punto di vista del diritto internazionale, una risposta negativa mi pare piuttosto agevole, considerato che l’espulsione ha avuto concreta esecuzione, e che, così comportandosi, l’Italia ha violato, con ogni probabilità, il principio derivante dall’articolo 3 della Convenzione europea dei diritti dell’uomo (nell’interpretazione datane  dalla Corte europea), in base al quale una persona non può essere allontanata, se esposta al  rischio di essere sottoposta a tortura o trattamenti disumani o degradanti nel Paese di destinazione (per una riaffermazione del principio in un caso recente: v. par. 91 della sentenza Mohammed c. Austria, del 6 giugno 2013). Un simile rischio era presente  al momento dell’adozione e dell’esecuzione del provvedimento, indipendentemente dalla circostanza che al marito della Shalabayeva fosse stato riconosciuto lo “status” di rifugiato nel Regno Unito. Basti pensare che:  a) le pressioni per la consegna di Ablyazov, e di sua moglie, provenivano da uno Stato dai connotati politico-costituzionali notoriamente illiberali; b) il rischio della sottoposizione a tortura o trattamenti disumani e degradanti per gli oppositori politici è già stato espressamente riconosciuto dalla Corte europea dei diritti dell’uomo, con riferimento al Kazakistan, proprio in un caso relativo all’estradizione dall’Ucraina, di un esponente  del movimento di Ablyazov (Baysakov e altri c. Ucraina, sentenza del 18 febbraio 2010, par. 48-52) c) sia la pratica della tortura, che quella della violazione dei diritti delle donne continuano, anche oggi, a conoscere una notevole diffusione in Kazakistan, com’è attestato dalle affermazioni del Comitato dei diritti umani delle Nazioni Unite  (v. le  Concluding Observations  sul rapporto del Kazakistan, adottate del 21 luglio 2011; per il primo aspetto, v. il punto 14; per il secondo, il punto 10), oltre che dai rapporti di organizzazioni non governative (per la tortura, v., da ultimo, la posizione di Amnesty International e di Human Rights Watch); d) le suddette pressioni, a riprova della marcata coloritura politica dell’affare, provenivano, nel caso di specie, direttamente dal capo della missione diplomatica di quel Paese in Italia, neppure dalle sue autorità giudiziarie o di polizia (come sarebbe stato normale attendersi, essendo l’Ablyazov destinatario di un mandato di cattura internazionale); e) la stessa Shalabayeva ha dichiarato (in un memoriale pubblicato dal Financial Times, del quale ampi estratti sono riprodotti, in traduzione italiana, dal “Fatto quotidiano“) di aver reso noto, nel corso del fermo, cui è stata sottoposta da parte italiana, di essere moglie di uno dei leader dell’opposizione kazaka; f) gli organi di polizia italiani e il prefetto di Roma, per quanto appena visto, avrebbero dovuto assumere autonome informazioni sull’Ablyazov e sulla Shalabayeva, visto che il principio di cui sopra dispiega piena efficacia nell’ordinamento italiano, rivolgendosi – com’è ovvio – nei confronti di tutti gli organi dello Stato e,  in una simile materia, particolarmente nei loro confronti e nei confronti dei magistrati competenti a convalidare l’espulsione; g) l’articolo 19 del testo unico sull’immigrazione riprende il suddetto principio, estendendolo ai casi “[…] in cui lo straniero possa essere oggetto di persecuzione per motivi di razza, di sesso, di lingua, di cittadinanza, di religione, di opinioni politiche, di condizioni personali o sociali, ovvero possa rischiare di essere rinviato verso un altro Stato nel quale non sia protetto dalla persecuzione”.  In senso contrario non può farsi valere, mi sembra, che l’interessata non verserebbe, attualmente, in questa situazione, non trovandosi agli arresti domiciliari, ma essendo soggetta ad un semplice obbligo di dimora (nella città di Almaty), impostole nell’ambito del procedimento relativo al rilascio illegale di un passaporto (come riportato da ADNKronos). E’ evidente che una simile circostanza, rilevata ex post,  non è in grado, in alcun modo, di eliminare (o di attenuare)  la negligenza (?! V. anche infra) dimostrata dalle autorità italiane nel dar luogo all’espulsione, negligenza di cui sembra costituire conferma, del resto, il fatto stesso dell’adozione del provvedimento di revoca.  Né si può trascurare il rischio che il trattamento a lei riservato possa in prospettiva cambiare, una volta abbassatisi i riflettori …

Può dirsi che la revoca del provvedimento di espulsione attribuisca alla Shalabayeva, la facoltà  di ritornare in Italia? Non vi è dubbio, mi pare, che, dal punto di vista dell’ordinamento italiano, la revoca del provvedimento di espulsione comporti la possibilità astratta del dispiegarsi di tale facoltà. Ognuno vede peraltro che le “chances” di concreta realizzazione di una simile eventualità sono davvero scarse, essendo piuttosto improbabile che il governo del Kazakistan si “apra”, per ora, a questa prospettiva, vista, fra l’altro, la funzione di “ostaggio” cui la Shalabayeva  può obbiettivamente assolvere, proprio in rapporto all’obbiettivo perseguito dalle autorità kazake, di arrestarne il marito. D’altro canto, la circostanza che il Kazakistan non sia parte della Convenzione europea dei diritti dell’uomo implica che tale Stato non possa essere indotto – perlomeno in ambito europeo -  a dar corso alla pretesa della Shalabayeva di lasciare il proprio Paese, neppure una volta cessate le ragioni oggi invocate per restringere tale diritto (articolo 2, par. 2 del Protocollo n. 4). A prescindere dalla natura consuetudinaria di un siffatto diritto, ciò potrebbe invece verificarsi, mutatis mutandis, nel sistema del Patto sui diritti civili e politici (art. 12, par. 2), dal momento che il Kazakistan ha  ratificato sia il Patto stesso (24 gennaio 2006), che il primo Protocollo opzionale in tema di comunicazioni individuali (30 giugno 2009).  In ogni caso, al di là di un eventuale (improbabile) ritorno in Italia della Shalabayeva, è necessario ripetere che quest’ultima aveva senz’altro diritto a non esserne allontanata in base al diritto internazionale, cioè a dire, in applicazione del suesposto principio, ricavabile dalla Convenzione europea.

Può concludersi che, in base al complessivo svolgersi degli eventi, l’allontanamento della Shalabayeva si configuri come una vera e propria “rendition”… mascherata da espulsione, più che come un allontanamento internazionalmente illecito? In questo senso si è pronunciata parte della stampa, essenzialmente in considerazione del fatto che l’espulsione della donna si è tradotta, per l’appunto, in una consegna della stessa alle autorità kazake. Ora, se è vero che le singolari modalità di attuazione (utilizzazione di un aereo privato) e la stessa rapidità di esecuzione del provvedimento di espulsione lasciano alquanto perplessi, una simile conclusione desta anch’essa perplessità. Si pensi solo che, a differenza di ciò che comunemente avviene in caso di “renditions”, la Shalabayeva non è, per ora, soggetta ad alcuna forma di detenzione segreta (e, a quanto pare,  neppure palese), né risulta sottoposta a tortura o trattamenti disumani e degradanti  (di recente, v. Savriddin Dzhurayev c. Russia, sentenza del 25 aprile 2013, par. 197-204), pur permanendo un simile rischio. Vero è che proprio la rapidità di esecuzione dell’espulsione ha di fatto comportato l’impossibilità di chiederne la sospensione, a titolo cautelare, da parte della Corte europea. Se questa circostanza sottenda, o meno, una sorta di dolosa accondiscendenza alle pressioni del Kazakistan, piuttosto che una negligenza delle autorità italiane di polizia coinvolte, non è dato dirlo oggi, con assoluta certezza (ma si veda, al riguardo, la nota di compiacimento indirizzata dall’Ambasciata del Kazakistan alla Questura di Roma il 28 maggio 2013, dal sito del Corriere della Sera).

Risulta invece, piuttosto chiaramente, che una marcata sottovalutazione del diritto internazionale ed europeo connota, in questa vicenda, sia i comportamenti delle autorità italiane coinvolte , sia quelli della Shalabayeva.  Stupisce che la donna non abbia richiesto la cd. “protezione sussidiaria”, in base a quanto previsto oggi dalla Direttiva 2011/95/UE del Parlamento europeo e del Consiglio, del 13 dicembre 2011 – e, già prima, dalla Direttiva CE 2004/83 – in tema di condizioni comuni per gli stati membri dell’Unione, per l’attribuzione ai cittadini di paesi terzi, non solo della condizione di rifugiato, ma anche dello “status” di persona comunque bisognosa di protezione internazionale. Al di là dell’eventualità di conseguire l’attribuzione dello “status” di rifugiato, ella avrebbe infatti potuto far valere – per quanto si è già detto, con ragionevole probabilità di successo  - il rischio delineato dagli articoli 2, lettera e) e 15 della Direttiva 2011/95, che replicano fedelmente, anche nella numerazione, gli articoli della Direttiva del 2004.

Ancora più degna di nota è poi, naturalmente, la scarsa considerazione delle conseguenze giuridiche internazionalistiche dell’affare, dimostrata da gran parte delle autorità italiane coinvolte, soprattutto sotto il profilo della protezione dei diritti fondamentali suscettibili di venire in rilievo. Al riguardo, è appena il caso di ribadire  quanto già segnalato sopra; e cioè, che il principio che avrebbe dovuto guidarne l’azione, non solo è pienamente consolidato nel sistema della Convenzione europea dei diritti dell’uomo – avendo tra l’altro ricevuto applicazione, proprio con riferimento al Kazakistan (!) – ma è anche ripreso, ed esteso, dall’art. 19 del Testo unico sull’immigrazione.   In attesa che gli sviluppi in corso di svolgimento forniscano nuovi elementi di riflessione, un’ulteriore questione si può forse porre, sin da ora, con particolare riferimento a quest’ultima circostanza. Può dirsi che essa dipenda anche da una certa “latitanza” del diritto internazionale dal dibattito pubblico italiano? In caso positivo: come, e in che misura, può questo Blog contribuire a superare tale latitanza?

Already in the fourth century AD, the Syrian writer LIBANIUS described in ancient Greek what Europe (including the Mediterranean) could become, due to the Union among the peoples and free trade. This text was translated by Pierre-Louis MALOSSE, my brother, who died on 8 July 2013. This extract of Libanius's speech is a tribute to his work and to all that I owe him.

Assistant Attorney General Bill Baer in charge of the Department of Justice’s Antitrust Division made a statement today after the U.S. District Court for the Southern District of New York found that Apple Inc. violated Section 1 of the Sherman Act by conspiring to raise e-book prices and end e-book retailers’ freedom to compete on price.

by Tomasz Targosz

Institute of Intellectual Property Law, Jagiellonian University Kraków

Institute of Intellectual Property Law, Jagiellonian University Kraków How the Polish broadcasting law on must-carry and must-offer makes broadcasters choose whether to infringe copyright and licensing contracts or the Polish Broadcasting Act. This post is about a rare mixture of … Continue reading →

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Public measures that do not constitute State aid are as interesting as the measures that do provide aid. This posting examines two measures that have been found not to fall within the scope of Article 107(1) TFEU because they do not satisfy one or more of the four criteria laid down in that Article.Non-economic activity: Commission Decision SA.35529 on “digitization” of books in libraries in the Czech Republic [1]The objective of the scheme is to promote culture and heritage conservation by improving  online access to catalogues of libraries. In order to improve online access, library holdings have to be converted to a digital format. Since the primary beneficiaries of the measure are local and regional libraries, university libraries and other specialised libraries, the question that has arisen is  whether they carry out economic activities so that they can be classified as undertakings in the meaning of Article 107(1) TFEU.

Want to pretend you’re Spiderman but can’t afford the suit and the genetic mutation? Argentine artist Leandro Erlich was commissioned by the Barbican in London to install a version of his wildly popular optical illusion that creates the visual effect of instant weightlessness. Using a wall of giant mirrors propped against a huge horizontal print of a Victorian terraced house, visitors are free to climb and jump around as their reflections appear to move freely without the pesky effects of gravity. Titled Dalston House the piece was erected in Hackney just off Dalston Junction on a disused lot that has remained vacant since it was bombed during the Second World War.

The installation opens today and is free to all visitors and will remain up through August 4th. Erlich will also be giving a talk tomorrow starting at 7:30pm. All images courtesy the Barbican. (via visual news)

European Parliament resolution of 10 May 2012 on the future of regional airports and air services in the EU (2011/2196(INI))

Source : © European Union, 2012 - EP

How much rest do pilots need to ensure safety in the air? The European Aviation Safety Agency (EASA) has proposed EU-wide rules setting limits on how long pilots could fly and be on duty. The Commission will use the plans as the basis of its own proposal. On 18 June the EP's transport committee consulted representatives of pilots, airlines and aviation authorities on the issue of tired pilots, the new rules and passenger safety. However, experts disagreed about what the optimum limits should be.

Source : © European Union, 2013 - EP

Piled Higher & Deeper by Jorge Cham		www.phdcomics.com
title: "More Wisdom from my 3 Year Old" - originally published 6/16/2013 For the latest news in PHD Comics, CLICK HERE!

IntroductionAfter the judgments of the General Court and the Court of Justice on public funding of infrastructure in the now landmark case of Leipzig-Halle, the European Commission is scrutinising more closely than ever the construction and operation of stadiums and arenas.In March 2012, the Commission opened two in-depth investigations into public funding for multi-function arenas, one in Uppsala (Sweden) and another in Copenhagen (Denmark). The investigations were concluded about a month ago with positive decisions.

by Gavin Bushell

Baker & Mackenzie

Baker & Mackenzie Like the European Commission, I am confident that the European Merger Simplification Project will bring benefits for clients. As many commentators have affirmed, I do not doubt that the increase of the currently applicable market share thresholds … Continue reading →

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Today’s handbook is the first comprehensive guide to European law in the areas of asylum, borders and immigration, taking into account both the case-law of the ECtHR and that of the Court of Justice of the European Union (CJEU). It also contains the relevant EU Regulations and Directives, as well as references to the European Social Charter (ESC) and other Council of Europe instruments.

The handbook focuses on law covering the situation of third-country nationals in Europe and covers a broad range of topics, including access to asylum procedures, procedural safeguards and legal support in asylum and return cases, detention and restrictions to freedom of movement, forced returns, and economic and social rights. The guide is aimed at lawyers, judges, prosecutors, border guards, immigration officials and others working with national authorities, as well as non-governmental organisations and other bodies that may be confronted with legal questions in the areas covered by the handbook.

“European Union legislation relating to asylum, borders and immigration is developing fast and becoming increasingly complex,” said FRA Director Morten Kjaerum at a seminar held today at the ECtHR in Strasbourg on the occasion of the launch. “This handbook offers, in a user friendly manner, information and assistance to practitioners in the field, improving the rights situation of migrants and asylum seekers in the EU.”

“Improving the understanding of common principles developed in the case-law of the ECtHR and the CJEU in this field is essential for the proper implementation of relevant standards and ensuring the full respect of human rights at national level,” said Court President Dean Spielmann in his opening words at the seminar.

On Thursday 23 May 2013 Matrix hosted the first of its “40 Years On – The UK in the EU” seminar series examining the impact of EU law on various areas of legal practice. The seminar considered the role of EU law in crime and due process matters. The speakers were Aaron Watkins, Andrew Bodnar, Joanna Buckley, Jodie Blackstock (Director of Criminal and EU Justice Policy at JUSTICE), and Mark Summers, chaired by Tim Owen QC.

You will find the excellent seminar handout here: 40 Years On – Seminar 1 – Hand Out

European Commission Press release Brussels, 5 June 2012 The European Commission has found that investment aid totalling €7.75 million to finance an infrastructure project at Memmingen airport is in line with EU state aid rules.

European Commission Maroš Šefčovič Vice-President of the European Commission Speech: Launch of the 'Guide to effective lobbying in Brussels' survey/Brussels 3 June 2013 Ladies and gentlemen, Last week I read an article in the Irish Times by a journalist who had been invited to today's event in which she expressed...

insanidadeartificial:

In a parallel universe…

IntroductionEnvironmental aid is the second largest horizontal category of State aid, after regional aid. It accounts for about 24% of all aid to industry and services. Yet, one often hears from public officials that the current Environmental Aid Guidelines (EAG) do not provide sufficient incentives for environmental protection. The problem is that aid is calculated as a percentage not of the whole investment costs but only of the extra costs. These extra costs are the difference between the cost of conventional technology and the higher cost of more environmentally friendly technology. Therefore, permissible aid is only a fraction of the additional costs.

The citizen's right to move freely within the Schengen area has been strengthened by a deal struck by MEPs, Council and Commission negotiators on Wednesday evening. For the first time, inspection teams will be able to make unannounced visits to internal borders to halt any attempt to impose illegal border checks. Free movement is the most positive outcome of 50 years of EU integration, said 62% of respondents to a recent Eurobarometer survey.
Committee on Civil Liberties, Justice and Home Affairs

Source : © European Union, 2013 - EP

European Commission Karel De Gucht European Commissioner for Trade Speech: Plenary debate of the European Parliament on the Transatlantic Trade and Investment Partnership/ Strasbourg 22 May 2013 From the outset, let me underline the importance of this Parliament's interest, commitment and contribution to preparations for negotiations of a Transatlantic Trade...

IntroductionThis posting reviews the judgment of the Court of Justice of the European Union in two joined cases: Eric Libert, et al v Gouvernement Flamand, (C-197/11) and All Projects & Developments NV and Others v Vlaamse Regering, (C-203/11).[1]The judgment which was rendered on 8 May 2013 is important because it addresses several issues concerning public service obligations, their relationship with the fundamental freedoms protected by EU law and the discretion of Member States to define and fund services of general economic interest.

by Ana Ramalho

Institute for Information Law (IViR)

Institute for Information Law (IViR) “It is not the European Parliament that officially determines the scope of the negotiating mandate, although its position now can certainly give a sign regarding the political winds that await the TTIP agreement.” The EU … Continue reading →

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Dr Jeremias Prassl

Frank S Benyon (ed), Services and the EU Citizen (Hart Publishing: Oxford, 2013) £55

The most recent volume in Hart Publishing’s Modern Studies in European Law series is a collection of essays edited by Frank S Benyon. Drawing on a series of workshops held at the European University Institute in 2010, its chapters cover a broad range of services regulated under EU law – from Electronic Communications and Broadcasting to Health Care and Transport. The overall goal of the project is an interesting one: to consider the potential interaction of two key topics in EU law – the notion of Union citizenship (Art 20 TFEU), and consumer protection (notably in Art 114(3) TFEU). As the editor puts it in his introduction, might ‘consumer advantages [...] not be seen as forming a constituent part of the rights of the EU citizen’?

In keeping with the theme of my recent posts here at EUtopiaLaw, this review focuses on the two substantive chapters dedicated to transportation and travel law, as well as the final chapter, in which the editor draws together the findings of the workshop series. This is a particularly difficult area in which to explore the theme of citizenship: travel is, by definition, not limited to EU citizens: the European Union sees just over a third of worldwide air passenger traffic pass through its airports each year. In drawing a similar conclusion in the final chapter, Frank S Benyon nonetheless makes the crucial point that consumer protection in the field of services is amongst the most directly relevant EU achievements for individual citizens.

The chapter contributed by Mikko Huttunen, Minister Counsellor at the EU’s Permanent Mission to the WTO and long-term Commission official, tells the interesting story of the early days of the EU’s involvement in transport regulation. Whilst transport was included in the Treaty of Rome as one of the three original common policies (alongside agriculture and fisheries and the common commercial policy), Union action came comparatively late, and only after a jolt in the ECJ’s 1985 decision in C-13/83 Parliament v Council.

The development of passenger rights can be characterized as a two-stage process: Huttunen shows how, first, market liberalisation in and of itself brought significant improvements to the daily life of air passengers – be it through the direct deregulation of routes and fares, or the liberalisation of the market in aviation services (and ancillary aspects such as ground handling and aviation security) more broadly. This perspective is frequently forgotten in today’s dialogue on aviation regulation, even though, as the author correctly notes ‘[t]he emergence of EU passenger rights cannot be understood without the context provided by the single EU aviation market’ (p 15). It was only at a subsequent, second, stage that the Commission’s attention turned to ‘Consumer Protection Measures Proper’: Regulations whose primary objective was to protect the consumer as air passenger and deal with the consequences of the liberalised EU aviation market from the consumer’s perspective more generally.

This two-stage analysis provides concrete evidence for an interesting framework that could be used in future disputes under the ever-contentious Regulation 261/2004, which grants passengers extensive rights in the case of adverse events such as flight delay or cancellation. Huttunen blames much of this litigation on an unclear mix between passenger and industry interest: the ‘tricky balance’ between market liberalisation and consumer protection (p 24).

In a subsequent chapter devoted to Travel and Tourism, Jens Karsten (a practitioner with bxl-Law in Brussels and former Commission official) reiterates several of these themes and puts them in a broader context. Maritime law (notably Regulation 392/2009 on the liability of carriers of passengers by sea in the event of accidents, which incorporates the Athens Convention of 2002), for example, is used to illustrate the ‘typical patterns of EU passenger law’, where the ‘Community legislator was quick to adopt the justification used for legal intervention in consumer markets for the purpose of legitimising its interference with the passenger-carrier relationship’. This, the author argues, constitutes a ‘novel – and, for the drafters of transport conventions, largely unforeseen – development that changed the perception of all layers of passenger law [...] to become a hybrid of transport law and consumer law’ (pp 36-38).

This ‘Rise of Passenger Law’ is then charted through an excellent, if somewhat descriptive, overview of key developments, which neatly brings together a comprehensive list of pending and decided cases (as of 2012; for an up-to-date search click here) as well as relevant Regulations and Directives, presenting them in the context of international agreements. A key difference from other areas of consumer services regulation emerges: norms are laid down nearly exclusively in conventions and regulations, rather than ‘Directives which go through the filter of the national legislator in transposition.’ This is said to make ‘faults in their structure more glaringly visible’ (p 45).

This overall perhaps more critical tone becomes clearer in Karsten’s discussion of the ECJ’s leading case law: Case C-344/04 ex parte IATA and ELFAA, (where the Court held that Regulation 261/2004 was fully compatible with the Montreal Convention, as ‘the assistance and taking care of passengers envisaged by [the Regulation] in the event of a long delay to a flight constitute […] standardised and immediate compensatory measures, [and are therefore] not among those whose institution is regulated by the Convention’ [44]), for example, is characterised as ‘Bending the Rules’. The subsequent decision in Case C-402/07 Sturgeon (where compensation for delayed passengers was interpreted into the Regulation on grounds of non-discrimination) is said to be an outright breach of existing rules. Writing in the run-up to the latest round of challenges from various Member State courts, the author expresses his hope that the ECJ ‘would have the courage to overrule what has earlier somewhat negligently been decided’. This would have been a ‘novelty indeed, but worthwhile for maturing the relationship of European law and international law’ (p 44).

The hoped-for change of tack did not take place, of course: in October 2012, the Court confirmed its earlier jurisprudence in joined Cases C‑581/10 and C‑629/10 Nelson and TUI Travel plc; it did so again in the subsequent Case C-11/11 Air France v Folkerts, as discussed here. Whilst there is some technical force in Karsten’s criticism, particularly as regards Sturgeon, it could also be said to ignore one of the larger themes that emerges from both transport-related chapters in the book: the European Union’s pioneer role in improving passenger rights globally. In this sense, the provisions of Regulation 2027/97/EC on accident liability as originally drafted can, for example, be seen as a clear catalyst for the renegotiation of the out-dated 1929 Warsaw Convention, which lead to the signature of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air in 1999.

At the same time, the EU institutions themselves have become much more subtle, as the recent Commission Proposal [COM(2013) 130] for a Regulation amending Regulation 261/2004 shows. The measures proposed there would not only put previous case law on secure legislative footing, but also re-balance and clarification of passenger and carrier interests; a far cry from the supposed ‘tendency to disrespecting the boundaries set to the ambition of passenger protection by uniform international law’ (p 41).

The book’s final chapter, written by its editor, returns to the broader idea of the ‘EU consumer’, asking in essence whether consumer rights should be included in future debates about the benefits associated with European Union citizenship. At first sight, there could be several advantages in such an association, not least by encouraging the Court to be proactive in its jurisprudence: the potency of citizenship continues to be clearly demonstrated, for example, in the line of cases following on from C-34/09 Ruiz Zambrano. That said, given the Court’s existing strong emphasis on the protection of passenger rights, and its resulting aggressive case law, this is unlikely to be of significant impact. Indeed, too close a link with Union citizenship might be outright harmful to the future development of passenger rights: it could lead to arguments that non-community carriers and passengers should be excluded from the scope of Regulation 261/04. In Benyon’s own words there ‘would seem therefore to be no need to search for a new legal basis for consumer protection measures’ (p 180).

There is, on the other hand, significant merit in the suggestion that furthering awareness of passenger (and other consumer) rights might be ‘a key remedy to the malaise of a large number of citizens towards the EU’ (p 163): the average passenger continues to be largely unaware aware of her rights and entitlements, despite extensive information campaigns. Whilst the volume will be useful primarily for academics and practitioners working in the area, it is nonetheless an important contribution to this process.

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Dr Jeremias Prassl

Fellow, St John’s College, University of Oxford

Michèle Finck, University of Oxford

On 16 April 2013, the Grand Chamber of the Court of Justice of the European Union (hereafter referred to as ‘the Court’ or ‘the CJEU’) delivered its judgment in Anton Las. At issue in this case was a decree of Flanders, a federated entity of the Belgian State, which required all cross-border employment contracts to be drafted in Dutch, one of Belgium’s three official languages. The CJEU had to decide whether such a measure was compatible with the free movement of workers, enshrined in Article 45 TFEU.

The Court held that, while the measure at issue could have been justified by the objectives invoked by Belgium; namely the protection of a national language, the protection of employees and the effective supervision by the national authorities, the obligation was disproportionate and thus contrary to EU law. While this case raises many interesting questions, this blog post focuses on merely one of them, namely on the CJEU’s stance towards the right of a sub-national authority of a Member State to protect and encourage the use of an official language. Aspects specific to Article 45 TFEU will not be dealt with.

While in recent times the Court has been faced with a number of cases concerning the question in how far the protection of an official language can restrict the four economic freedoms (see for instance in the Luxembourg Notaries case and Runevič-Vardyn and Wardyn), Anton Las somewhat diverges from these judgments given that it concerns an official language that is not common to the entire territory of a Member State but only one of its constituent parts.

From this perspective, it is not so much the outcome of the case that is of interest, but rather the reasoning of the Court.  Indeed, after the recent judgment in Kamberaj, this is only the second time that the Court pronounced itself on how EU law approaches official languages that are not common to an entire Member State but only of a part thereof. In addition, the measure in this case is not of a national but of a regional nature as it was adopted by a sub-national authority rather than a Member State.

Advocate General Jääskinnen recognized that:

 ‘Protection of an official language, whether national or regional, is an objective of general interest which the Court has accepted as a legitimate justification for adopting a policy for the protection and promotion of a language.’ 

Yet, he concluded that the measure seeking to protect the use of the Dutch language was disproportionate and thus contrary to EU law. The CJEU agreed that the measure was not proportionate as its sanction consisted in the nullity of the contract and given that the parties to a cross border contract might not have knowledge of Dutch (in fact the employer signing the contract was a Singapore national with no knowledge of the Dutch language.)

The CJEU argued that, in general, EU law does not preclude domestic measures that protect or promote one or multiple official languages. It reiterated that the EU is obliged to respect its Member State’s linguistic diversity. In accordance with Runevič-Vardyn and Wardyn, the Court also found that the respect for such linguistic diversity flows from the respect that the EU owes the national identities of its Member States according to the first sentence of Article 4(2) TEU. This reference is interesting. While it could have been feared that this provision would be little less than a rhetorical device in the Treaty that triggers little legal effects, the case under analysis confirms the recent trend[1] that the Court is rather eager to rely on this provision. Indeed, the Court found that:

‘According to the fourth subparagraph of Article 3(3) TEU and Article 22 of the Charter of Fundamental Rights of the European Union, the Union must respect its rich cultural and linguistic diversity. In accordance with Article 4(2) TEU, the Union must also respect the national identity of its Member States, which includes protection of the official language or languages of those States.’[2]

As such, the Advocate General and the Court agree that, in principle, the promotion and encouragement of the use by a sub-national authority of an official language of a Member State can constitute a legitimate interest that can justify restrictions to Article 45 TFEU, even if in casu the restriction could not be justified.

Thus, Anton Las is noteworthy for two reasons: (i) because it confirms that domestic laws (be they of a national or regional nature) can impose obligations on private actors aimed at encouraging the use official language, and (ii) because it forms part of a more general trend towards the recognition of sub-national autonomies by EU law. Indeed, there is a deep link between sub-national autonomies and language. This is very obvious when looking at Belgium, but can also be observed in Catalonia, the Basque Country or certain parts of Italy. It is important to note that although the recognition of Dutch as an official language of Belgium is enshrined at national level, the obligation to use this language in employment contracts has its origin in a regional law.

While the European Union was, according to the tradition in international law, at first blind to the existence of its Member State’s constituent parts, this is now changing. Indeed, in the last Treaty revision, references to the sub-national dimension have been included, among others, into Article 4(2) TEU, as well as the principle of subsidiarity that is enshrined in Article 5(3) TEU. In addition, the CJEU has also started to change its position towards sub-national authorities and altered its case law so as to create space for their autonomies, as best illustrated by the Azores case.

While, by looking at the result of Anton Las, it might at first sight appear rather unspectacular, a closer look actually reveals that it is not simply about Article 45 TFEU but also about the question how EU law should approach the ‘regionalism’ in some of its Member States. The importance of this delicate question no doubt explains why the case was assigned to the Grand Chamber and why the latter stressed the right of Member States and their constituent parts to protect their languages. As such, measures of the kind are in no way per se incompatible with EU law, but merely when they are disproportionate in nature.

Consequently, the Grand Chamber’s judgment in Anton Las must be considered to contribute to the still shy but nonetheless important trend in EU law to allocate increased importance to sub-national autonomies and identities.